Bombay High Court
Nandbodhi Magaswargiya Grahak vs Leelabai W/O Sukhdeo Palaskar on 28 October, 2010
Author: S.S. Shinde
Bench: S.S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION No. 10 OF 2006
Nandbodhi Magaswargiya Grahak
Sahakari Sanstha, Maryadit, through
its Chairman, Uttamrao S/o Mukundrao
Shinde, Age 64 years, Occu. R/o
plot No. 1148, Sai Nagar, N-6,
Cidco, Aurangabad. ...PETITIONER
VERSUS
1]
Leelabai W/o Sukhdeo Palaskar,
Age 45 years, Occu. Household,
r/o House No. 36, N-12, Hudco,
Aurangabad.
2] District Supply Officer,
Collector office, Aurangabad.
3] Food Grains Distribution Officer,
Collector office, Aurangabad.
4] Additional Collector,
Collector office, Aurangabad.
5] State of Maharashtra
(Food, Civil Supplies and
Consumer protection Department,
through Collector of District
Aurangabad, Collector office,
Aurangabad. ..RESPONDENTS
...
Mr. P.S. Dighe, Advocate for Petitioner
Mr.S.L. Jondhale, Advocate for Respondent No. 1
Mr.V.H. Dighe, A.G.P. for respondent Nos. 2 to 5
CORAM :- S.S. SHINDE, J.
JUDGEMENT RESERVED ON : 18th October, 2010
JUDGMENT PRONOUNCED ON : 28th October, 2010
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JUDGMENT:
This Civil Revision Application is filed, challenging the Judgment and Order dated 22th December, 2005 passed by the learned Civil Judge, Senior Division, Aurangabad Dist. Aurangabad below Exh. 30 in Regular Civil Suit No. 653 of 2005. The petitioner herein is the original defendant No. 5 and respondent No. 1 is original plaintiff in Regular civil Suit No. 653 of 2005. The respondent Nos. 2 to 4 are original defendant Nos. 2 to 4 in the said suit.
2. The plaintiff filed the suit with following prayer :
"A] The Suit of the plaintiff may kindly be decreed with costs.
B] That, the defendants be restrained from discontinuing the business carried by the plaintiff of fair price shop NO. 73 without following due procedure under by issuing the perpetual injunction and declare the orders dated 6/09/2005, 8/09/2005 and 22/08/2005 passed by the defendant Nos. 1 to 4 back and behind without hearing the plaintiff as null and void."
In the said Regular Civil Suit petitioner ::: Downloaded on - 09/06/2013 16:35:20 ::: 3 herein filed application under Section 9-A of Civil Procedure Code, and prayed for framing issue of jurisdiction under Section 59-A of Civil Procedure Code and it be tried first. The original plaintiff filed say on the said application stating that the application is misconceived. The remedy available under the Act will operate as a bar to the Jurisdiction of the Civil Court, therefore, this application is not tenable.
ig The learned Civil Judge,
Senior Division, Aurangabad by his order dated 19th
October, 2005 granted application and framed the
preliminary issue thus :
" Whether this Court has jurisdiction to
try the suit in view of Maharashtra
Scheduled Commodities (Regulations &
Distribution) Order 1975?"
The said application filed by the petitioner herein was exhibited at Exh. 30. The learned Civil Judge, Senior Division, Aurangabad by his order dated 22th December, 2005 held that there is no express bar under Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975, to oust the jurisdiction of Civil Court. Being aggrieved by the said order dated 22th December, 2005, this Civil Revision Application is ::: Downloaded on - 09/06/2013 16:35:20 ::: 4 filed by the original defendant No. 1.
3. The learned counsel appearing for the revision petitioner submitted that licence bearing No. 73, in respect of fair price shop and kerosene is given in favour of petitioner society and petitioner society is running the same in the Aurangabad city. In the year 1982, the petitioner society went in liquidation and ig administrator was appointed by the Assistant Registrar Co-operative Societies, Aurangabad, and the shop Nos. 73,77 and 78 were given to the employees of the petitioner society for running the same. Shop No. 73 was run by the husband of the respondent No. 1, namely Sukhdeo Palaskar who was the salesman of the petitioner society. In 2003, the petitioner society came up from liquidation. The application was filed with the authorities for handing over the fair price shop Nos. 73,77 & 78 to the society, as it was earlier run by the petitioner society.
On 16th August, 2003, the husband of the respondent No. 1, running the fair price shop No. 73, expired. On 7th November, 2003, the District Supply ::: Downloaded on - 09/06/2013 16:35:20 ::: 5 Officer, Aurangabad rejected the application of the petitioner for handing over the said shops No. 73,77 & 78 in favour of the petitioner society. Being aggrieved, petitioner society filed revision before the State Government, challenging the letter dated 7th November, 2003 issued by the District Supply Officer, Aurangabad. The Minister, Food, Civil Supplies Department, Mantralaya, Mumbai, on 18th August, 2004 allowed the said ig revision filed by the petitioner society, thereby directing to allot the shops No. 73,77 & 78 to the petitioner society.
It is the case of the petitioner that on 04th February, 2005, the respondent No. 1, one of the two wives of said Shri Sukhdeo Palaskar made application to District Supply Officer, Aurangabad to give her licence of shop No. 73 being legal heir of Sukhdeo Palaskar. On 27th August, 2005, the District Supply Officer, Aurangabad issued letter to the Distribution Officer to take action on the application given by respondent No. 1 on 9th June, 2005.
The District Supply Officer, Aurangabad, refused to allot the kerosene quota to the petitioner ::: Downloaded on - 09/06/2013 16:35:20 ::: 6 society, and therefore, the revision was filed before the State Government by the petitioner. Though the order dated 18th August, 2004, was passed by the State Government giving shops No. 73, 77 & 78 to the petitioner society, but as the quota of kerosene was not allotted the petitioner society approached to the State Government by filing revision and same was heard by State Government on 14th July, 2005 and same was reserved for orders.
According to the Counsel for the
petitioner, the Distribution Officer who had no
authority to take decision for allotting the shop,
issued notice of hearing to the respondent No. 1,
directing to remain present on 28th July, 2005. The Distribution Officer without any authority in law and without any powers and without taking permission of the higher authorities, issued a letter in favour of respondent No. 1, directing to run the said fair price shop No. 73 of which the licence was with the petitioner society. On 18th August, 2005, the superior authority of the Distribution Officer, the Additional Collector issued letter to the Distribution Officer, Aurangabad, that he had no powers to issue letter ::: Downloaded on - 09/06/2013 16:35:20 ::: 7 dated 2nd August, 2005 in favour of respondent No. 1.
The learned Counsel further submitted that on 22th August, 2005, the revision filed by the petitioner society came to be allowed, thereby directing to allot the kerosene quota in favour of the petitioner society. On 6th September, 2005, the District Supply Officer, Aurangabad immediately in view of the letter issued by the Additional Collector stopped the supply of the essential commodities to the respondent No. 1.
On 8th September, 2005 the District Supply Officer issued letter to the Distribution Officer referring the orders dated 18th August, 2004 and 22th August, 2005 passed by the State Government and directed to issue allocation in favour of the petitioner society. The respondent No. 1 who is original plaintiff filed Regular Civil Suit No. 635 of 2005 before Civil Judge, Senior Division, Aurangabad for perpetual injunction against shop No. 73 and declaration challenging the letters dated 6th September, 2005, 8th September, 2005 and order dated 22th August, 2005 which are mentioned here-in-above. The petitioner filed application Exh.
30 for framing preliminary issue of Jurisdiction under Section 9-A of Civil Procedure Code. The Civil Court held that Court has jurisdiction to entertain the ::: Downloaded on - 09/06/2013 16:35:20 ::: 8 suit, and there is no express bar in the Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975.
4. The learned Counsel appearing for the petitioner submits that Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975 (Here-in-after referred as 'said order of 1975') has been enacted as ig per Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Essential Commodities Act, 1955 gives powers to the authorities for issuing necessary licence /authorization for running fair price shop. Clause 24 of the said order provides the machinery to the aggrieved person, approaching the Commissioner or the State Government against the order passed by the Collector. Therefore, according to the learned counsel for the petitioner, the respondent No. 1 was having remedy to approach the State Government under clause 24 of the said order of 1975. As the machinery provided under the said order of 1975, therefore, the jurisdiction of the Civil Court is impliedly barred. The learned Counsel appearing for the petitioner invited my attention to the provisions of Section 6 of the Essential ::: Downloaded on - 09/06/2013 16:35:20 ::: 9 Commodities Act, 1955, and submitted that as per said section the Order of 1975 is having overriding effect, and therefore, procedure provided under the said order has to be followed by the aggrieved person.
The learned Counsel invited my attention to the reported Judgment in case of "Harishankar Bagla and another V/s. State of M.P., reported in AIR 1954 S.C. 465" and submitted that, it has been held that the provisions of the order made under section 3 of the Essential Commodities Act, 1955 will prevail in preference to the provisions of other laws. It has been also further held that as soon as the order comes into force that will have effect not withstanding any inconsistency therewith contained in any enactment other than this Act. It is further submitted that the said order of 1975 is created by a statute i.e. Essential Commodities Act, 1955 and it provides a machinery for the enforcement of the right giving remedy and therefore, the Civil Court's Jurisdiction is impliedly barred. The learned Counsel in support of his contention placed reliance on the following Judgments :
1] "Raja Ram Kumar Bhargava (dead) by LRs V/s. Union of India, reported in AIR, 1988, S.C. 752"::: Downloaded on - 09/06/2013 16:35:20 ::: 10
and more particularly Head Note 2] Bharat Prasad and others V/s. State of Bihar & others, reported in (2009)6, SCC, 698.
3] Music Choice India Pvt. Ltd. V/s.
Phonographic Performance Ltd., reported in
2009(2), Mh.L.J.651.
4] State of A.P. V/s. Majeti Laxmi Kantha
Rao(D) by L.R.s. & others, reported in AIR, 2000, SC 2220.
It is further submitted that the respondent No. 1 did not have legal right to claim the principles of natural justice, as no licence or authorisation has been given in favour of respondent No. 1 by the authorities for running the fair price shop No. 73, as the licence is with the petitioner society since the year 1982, and the same has been renewed from time to time. The respondent No. 1 is claiming right to heard only on the basis of letter dated 2nd August, 2005 issued by the Distribution Officer, who has no authority to issue such letter and which has been informed by the Additional Collector immediately on 18th August, 2005, and accordingly the supply of food grains was immediately stopped on 6th September, 2009.
According to the counsel for the petitioner, the ::: Downloaded on - 09/06/2013 16:35:20 ::: 11 revision which was filed by the petitioner society before the State Government in July, 2005 and the letter issued by the Distribution Officer to the respondent No. 1 is dated 2nd August, 2005 i.e. after filing of revision and therefore, the respondent No. 1 cannot claim any right to be heard before passing order on 22nd August, 2005. The revision filed by the petitioner society was heard on 14th July, 2005 when at the relevant time there was no document in favour of respondent No. 1 to claim principles of natural justice before the State Government.
The learned Counsel further submitted that the husband of respondent No. 1 was the salesman of the petitioner society, and therefore, the said shop No. 73 was given to him for running as the petitioner society went into liquidation. According to the Counsel, the State Government has passed order dated 18th August, 2004 in favour of the petitioner society allotting the said shops No. 73,77 & 78 and as the kerosene quota was not allotted to the petitioner society again revision was filed before the State Government, and the order dated 22nd August, 2005 was passed in favour of the petitioner society, thereby ::: Downloaded on - 09/06/2013 16:35:20 ::: 12 directing to allot kerosene quota to the petitioner society. Therefore, learned Counsel for the petitioner society would submit that the principle of natural justice can be claimed by a person who had some right in his favour, at the time of filing first revision and second revision by the petitioner society before the State Government. The respondent No. 1 is claiming the right to run the business of fair price shop which can be granted under the provisions of the said order of 1975 and not by the Civil Court as will be evident from the prayers made by the respondent No. 1 in her suit. Therefore, learned Counsel appearing for the petitioner would submit that this Civil Revision Application deserves to be allowed.
5. On the other hand, learned Counsel appearing for the respondent No. 1, has invited my attention to the pleadings in the plaint and reasons recorded by the Trial Court in its impugned Judgment and order and submitted that jurisdiction of the Civil Court is not expressly barred by the said Order of 1975. There is no any specific provision in the said Order of 1975, which bars jurisdiction of the Civil Court. The learned Counsel submitted that the order passed by the ::: Downloaded on - 09/06/2013 16:35:20 ::: 13 Minister, Food Civil Supplies, in revision is without hearing the respondent No. 1. Since, 1984 the respondent No. 1 was carrying business of fair price shop. In the year 2003, the fair price shop was transferred in the name of respondent No. 1. The order passed in the revision is behind back of the respondent No. 1, and therefore, the order which is passed without hearing to the respondent No. 1, can be very well challenged by way of filing Civil Suit and jurisdiction of the Civil Court is not barred in that case. The learned Counsel further submitted that, on 2nd August, 2005 the fair price shop was allotted to the respondent No. 1. The learned Counsel submitted that nothing has been stated in the said Order of 1975, which bars jurisdiction of the Civil Court. The learned Counsel further invited my attention to the pleadings in the plaint, annexures thereto and original record and submitted that the impugned order passed by the Civil Court is perfectly sustainable and no interference is warranted in the revisional jurisdiction by this Court.
6. The learned Counsel further submitted that the husband was carrying and conducting the business ::: Downloaded on - 09/06/2013 16:35:21 ::: 14 of the fair price shop No. 73, who had got licence Parwana No. 06955 dated 17-08-1984, the said was renewed time to time. That, while conducting and carrying business of fair price shop NO. 73, he has expired on 16-08-2003. The District Supply Officer, Aurangabad has ordered to Food Distribution Officer, Aurangabad for making enquiry and to issue Licence.
Thus, enquiry was carried, statements were recorded.
Thereafter, onig 02-08-2005, a authority letter cum order has issued in favour of respondent No. 1 to conduct and carry business of fair price shop NO. 73.
This Hon'ble Court pleased to direct the petitioner to produce a copy of revision petition which was filed before learned Minister of Food Civil Supplies Department, Mantralaya, Mumbai. But the petitioner failed to comply of direction of this Hon'ble Court.
The petitioner has made a capital that the learned Minister has issued order on 18-08-2004 in regards to fair price shops Nos. 73,77 & 78. But the said order has been challenged by the shop owner of fair price shop No. 77 by filing a R.C.S. No. 238/2002. By that order petitioner has been restrained to take shops by Ld. Civil Judge Senior Division, Aurangabad vide its order dated 04-02-2005. The said order is on record.
::: Downloaded on - 09/06/2013 16:35:21 ::: 15The learned Minister has passed order behind back of this respondent NO. 1 Leelabai Palaskar, which is bad in law. The said is not binding on her.
7. The learned Counsel in support of his contention placed reliance on the reported judgment, in a case of "Rajasthan S.R.T.C. & others V/s. Mohar Singh, reported in 2008 AIR SCW 3567" and submitted that order of ig Civil Court declaring dismissal of service of bus driver of State Transport Corporation as being passed in violation of principles of natural justice cannot be said to be without jurisdiction. In the event, it is found that the action on the part of a statute or statutory rules, the Civil Court would have the jurisdiction to give directions. The learned Counsel further placed reliance on the following reported Judgments of the Supreme Court / this Court :-
1] B. Nagabhushanam V/s. State of Karnataka, reported in 2008, AIR, SCW 3573.
2] Laxminarayan Ramdayal Gutani Vs. State of Maharashtra, reported in AIR 1983 Bombay 232 more particularly in para No. 10 of the said Judgment.
3] Rasta Peth Education Society, Pune V/s.::: Downloaded on - 09/06/2013 16:35:21 ::: 16
Pethkar Udhao Bhimashankar, reported in 1994, Mh.L.J. 725.
4] Madhav Kesu Khuspe V/s. Sundarabai Mugutrao Phadatare since deceased by heirs Krishna Dagdu Khuspe and others, reported in 1978, Mh.L.J. 289.
The learned Counsel submitted that it cannot be countenanced that for all purposes the jurisdiction of the Civil Court is taken away. The power of the Civil Court to examine cases where the provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the principles of judicial procedure or natural justice remains unaffected. The learned Counsel further placed reliance on reported Judgment of this Court, in a case of "Baburao Anant Dhage & others V/s.
Jagannath Gopala Karale, reported in 1999(3), ALL MR 414" and submitted that whenever the challenge to the proceedings or the document is based on fraud, the fraud being a complicated question affecting the civil rights of the parties, it is a matter to be dealt with by the Civil Courts. Therefore, learned counsel relying on various Judgments of the Supreme Court and this Court would submit that the impugned Judgment and Order passed by the Trial Court needs no interference ::: Downloaded on - 09/06/2013 16:35:21 ::: 17 at the hands of this Court. The learned Counsel further submitted that even clause 24 of of the said Order of 1975 contemplates hearing to the affected party. However, admittedly respondent No. 1 was not heard before passing orders, granting shop or kerosene licence in favour of the petitioner society, therefore, learned Counsel would submit that this Civil Revision Application deserves to be dismissed.
8. The learned A.G.P. appearing for the respondents /State submitted that the said Order of 1975, provides remedy to the aggrieved person, if the licence is granted or refused by virtue of provisions of said Order of 1975 and therefore, the Civil Court has no powers to entertain the suit.
9. I have heard learned Counsel appearing for the petitioner, learned Counsel appearing for the respondent No. 1 and learned A.G.P. for respondents /State at great length. I have carefully perused the pleadings in the revision, annexures thereto, impugned Judgment and order passed by the Court below, and also original record made available for perusal. At the outset it would be relevant to ::: Downloaded on - 09/06/2013 16:35:21 ::: 18 refer Section 3 of the Essential Commodities Act, 1955 which reads thus :-
" Powers to control production,
supply,distribution etc. of essential
commodities -
(1) If the Central Government is of
opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production,supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide,-
(a) for regulating by licence,
permits or otherwise the
production or manufacture of any
essential commodity;
(b) for brining under cultivation
any waste or arable land, whether
appurtenant to building or not,
for the growing thereon of food-
crops generally or of specified
food-crops, and for otherwise,
maintaining or increasing the
cultivation of food-crops
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19
generally, or of specified food-
crops;
(c) for controlling the price at
which essential commodity may be
brought or sold;
(d) for regulating by licence,
permits or otherwise the storage,
transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the
ig withholding
essential commodity ;
from sale of any
[(f) for requiring any 0person
holding in stock, or engaged in
the production, or in the business
of buying or selling, of any
essential commodity,-
(a) to sell the whole or a
specified part of the quantity
held in stock or produced or
received by him, or
(b) in the case of any such
commodity which is likely to be
produced or received by him to
sell the whole or a specified part
of such commodity when produced or
received by him, to the Central
Government or a State Government
or to an officer or agent of such
Government or to a Corporation
owned or controlled by such
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20
Government or to such other person
or class of persons and in such
circumstances as may be specified
in the order."
The Maharashtra Scheduled Commodities
(Regulation of Distribution) Order, 1975 issued by the Food and Civil Supplies Department, Sachivalaya Annexe, Bombay. The opening portion of the said order reads thus :-
" No.ECA-2875/2598/II- in exercise of the powers conferred by sub section (1), read with clauses (c), (d), (e), (f), (i), (ii) of sub section (2) of Section 3 of the Essential Commodities Act, 1955 (x of 1955), and of all other powers enabling the Government of Maharashtra in this behalf, read with the order of the Government of India, Ministry of Agriculture (Department of Food), No. GSR, 316(E), dated the 20th June 1972 and the orders of the Government of India, Ministry of Industry and Civil Supplies (Department of Civil Supplies and Co-operation) No. S.O. 681 (E) and S.O. 682(E), dated the 30th November, 1974 and with the prior concurrence of the Central Government, the Government of Maharashtra hereby makes the following order, namely :-::: Downloaded on - 09/06/2013 16:35:21 ::: 21
1. Short title, extent and commencement -
(1) This order may be called the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975.
(2) It extends to the whole of the State of Maharashtra excluding the Rationing Area.
(3) It shall come into force on the 1st day of October 1975."
Bare perusal of the afore mentioned extract from the order would demonstrate that the said order is passed in exercise of the powers conferred by sub section (1) read with clauses (c), (d), (e), (f),
(h), (i) (ii) and (j) of sub section (2) of Section 3 of the Essential Commodities Act, 1955 (X of 1955).
U/clause 2 of the said order, definitions of "authorised agent" "authorised establishment", "Collector","Commissioner","dealer","establishment","e stablishment consumption","fair price shop","household consumption","levy sugar","rationing area","supply slip","supply card", "supply document" and "scheduled"
are given. Perusal of clause 2 makes it clear that the authorities Collector, and State Government is empowered under the said order of 1975 to issue licence, and issue card etc., and further to keep ::: Downloaded on - 09/06/2013 16:35:21 ::: 22 control over the licence and shops allotted under this Order of 1975.
In clause No. 2 (f) the fair price price shop is defined. The fair price shop means person in-
charge of the shop authorised under the provisions of clause, and includes a person in-charge of a shop where scheduled commodities are sold and is under the control of Government. Therefore, it is clear that the licenses are granted to run the fair price shop under the provisions of said Order of 1975.
Clause 3 of the said order of 1975 reads thus :-
""issue of authorisation to fair price shops and agents to obtain and supply scheduled commodities".--
(1) With a view to controlling the distribution of scheduled commodities, the State Government or the Collector may issue an authorisation to any person for being a fair price shop or for being an agent of any fair price shop, to obtain and supply scheduled commodities in accordance with the ::: Downloaded on - 09/06/2013 16:35:21 ::: 23 provisions prescribed by under this Order.
(2) Every fair price shop shall deposit with the Government or the Collector, a sum not exceeding Rs. 5,000/- as may be specified by it in this behalf, for the due performance of the conditions of the authorisation and the sum so deposited or any part thereof, may without prejudice to any other penalty, after enquiry and for reasons to be recorded in writing, be forfeited by the State Government or the Collector for contravention of any such conditions. If, as a result any departmental action, the sum deposited or any part thereof forfeited, the fair price shop shall forthwith pay to Government such amount as may be required to make up the prescribed sum to be deposited as Security.
(3) On the commencement of this Order in any area, in the case of an authorised fair price shop who is deemed to be a fair price shop under the Explanation to sub clause (f) ::: Downloaded on - 09/06/2013 16:35:21 ::: 24 of clause (2), any sum which stands deposited by him as security immediately before such commencement shall be deemed to be deposited with the State Government as full or part security for the purposes of this clause.
(4) The State Government or the Collector may, at any time whether at the request of the fair price shop or authorised agent or suo-motu, after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, add to, amend, vary, suspend or cancel the authorisation issued or deemed to be issued to him under this clause."
On careful perusal of of clause 3 of the said Order of 1975, it is abundantly clear that the State Government or the Collector is empowered to issue authorisation to any person being an agent of any fair price shop to obtain and supply scheduled commodities in accordance with the provisions prescribed by or under this order. Perusal of the ::: Downloaded on - 09/06/2013 16:35:21 ::: 25 clause 3 would make it clear that only "the State Government or the Collector is the competent authority to issue an authroisation to any person for being a fair price shop or for being an agent of any fair price shop, to obtain and supply scheduled commodities in accordance with the provisions prescribed by or under this order."(emphasis supplied) In the context of controversy raised in the present matter, the clause 24 is important. The clause 24 of the said order of 1975 reads thus :-
" Power to call for an examine records of proceedings and revise orders.-- If any person is aggrieved by an order passed by the Collector, the Commissioner, and if any person is aggrieved by an order passed by the Commissioner, the State Government, may, on an application made to him or it by the aggrieved person, within thirty days from the date of receipt of such order, stay the enforcement of such order. The Commissioner or the State Government, as the case may be, may also call for and examine the record of any enquiry or proceedings of the concerned Officer exercising or failing to exercise the powers under this Order to add, to amend, vary, suspend or cancel any ::: Downloaded on - 09/06/2013 16:35:21 ::: 26 authorisation issued or deemed to be issued under clause 3 or any supply card issued or deemed to be issued under clause 6 or to forfeit the deposit for any part deemed thereof paid or deemed to be paid by a fair price shop authorised agent as security to take any other action under the provisions prescribed by or under this Order, for the purpose of satisfying himself or itself as to the legality or propriety of the order passed by such officer, and as to the regularity of the proceedings officer may pass such order thereon as he or of such it, as the case may be, thinks fit:
Provided that State Government may at any time, during the pendency of any enquiry or proceedings or within one year from the date of any order passed by any officer under the provisions prescribed by or under this Order, suomotu stay any pending enquiry or proceedings or the enforcement of such order if considered necessary and may call for and examine the record of any enquiry or proceedings, and pass such order thereon as it thinks fit:
Provided further that, the Commissioner or the State Government, as the case may be, shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard."::: Downloaded on - 09/06/2013 16:35:21 ::: 27
10. The clause 24 of the said order of 1975 provides the remedy to the aggrieved person, by an order passed by the Collector, or the Commissioner.
The State Government is also empowered to entertain the revision by the aggrieved person. The State Government can also during the pendency of any enquiry or proceedings or within one year from the date of any order passed by any officer under the provisions prescribed by or under this Order, suo-motu stay any pending enquiry or proceedings or the enforcement of such order if considered necessary and may call for and examine the record of any such enquiry or proceedings, and pass such order thereon as it thinks fit. The clause 24 of the said Order of 1975 further provides that the Commissioner or the State Government as the case may be, shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard.
11. In the aforesaid provisions of the Order of 1975, it is relevant to mention that the fair price shop No. 73 was allotted to the petitioner on 18th ::: Downloaded on - 09/06/2013 16:35:21 ::: 28 August, 2004. The Minister, Food and Civil Supplies Department, Mantralaya, Mumbai allowed the revision filed by the petitioner and alloted the shops No. 73,77 & 78 to the petitioner society. It is admitted position that by virtue of said order, even the shop No. 73 for which respondent No. 1 has claimed the reliefs in the suit, came to be allotted to the petitioner society. At this juncture, it is relevant to refer the pleadings in the suit, which would make it clear that aggrieved by the order of allotment of shop No. 73 in favour of present petitioner, the respondent No. 1 herein i.e. plaintiff in suit did file Writ Petition No. 6194 of 2004 before this Court.
In respect of Writ Petition bearing No. 6194 of 2004, the respondent No. 1 has made following statement in the plaint in para No. 6, which reads thus :-
" But the defendant No. 5 has tried continuously to get the possession of fair price shop No. 73 by hook or crook, who sought orders from the Minister (Food and Civil Supply) on 18/08/2004 into back and behind of the plaintiff has filed a Writ Petition NO. 6196 of 2004 through her Advocate High Court Shri A.D. Sugdare against the respondent No. 5 and others with a prayer to issue a writ of mandamus or any ::: Downloaded on - 09/06/2013 16:35:21 ::: 29 other writ in like nature or order or directions by the Honourable High Court to grant permission to run the fair price shop No. 73 usual terms and conditions. But there was a caveat application No. 397 of 2004 of the respondent No. 5. In the said caveat application defendant No. 5 has contended that "Non caveators are likely to be challenging the impugned order dated 18th August, 2004 which is passed by the Honourable Minister for Food an Civil Supply Department Mantralaya, Mumbai-32 in respect of fair price shop Nos. 73,77 & 78 in case No. VAM/1604/1168/PK/037/C.S.21. A copy of the said caveat is annexed herewith and marked as ANNEXTURE K. However, the plaintiff has already made her statement in the said Writ petition that the defendant NO. 5 has filed a proceeding before the learned Minister Mantralaya, Mumbai and sought order on 18/08/2004, the plaintiff was not the party in the said matter nor issued a notice to the plaintiff by the learned Minister for Food and Civil Supply Department. Therefore, said order is not binding upon the plaintiff. According to the ratio laid down by the Honourable High Courts and Honourable Supreme Court of India that the orders passed in the proceeding are not binding on a person in view of the natural justice, because of the plaintiff is not party in the matter before the learned ::: Downloaded on - 09/06/2013 16:35:21 ::: 30 Minister for Food and Civil Supply Department, Mantralaya, Mumbai. Therefore, the said order of the learned Minister for Food and Civil Supply Department, Mantralaya Mumbai is not binding on plaintiff. The prayer of plaintiff made in Writ Petition No. 6196 of 2004 for issuing direction to allot fair price shop NO. 73 to her as a succor and legal heir of deceased her husband Sukhdeo Amrutrao Palaskar. The facts of seeking order from the learned Minister, Food and Civil Supply, Mantralaya, Mumbai by the defendant NO. 5 into back and behind of the plaintiff cannot be challenged into the Writ Petition. The plaintiff sought the permission to run the fair price shop NO. 73 from the defendant Nos. 1 & 2 vide order dated 2/08/2005. Therefore, the Writ Petition has become in fructuous. The plaintiff. The plaintiff has filed a Civil Application to withdraw the said writ petition through a Civil Application No. of 2005."
The order allotting the fair price shop No. 73, by the Minister, Food Civil Supplies Department in favour of petitioner herein was subject matter of the said Writ Petition. On perusal of entire pleadings extracted here-in-above, it is appears that the respondent No. 1 who was petitioner in the said Writ ::: Downloaded on - 09/06/2013 16:35:21 ::: 31 Petition, did not sought liberty to file any other proceedings, before any other authority or competent Court. It appears that said Writ Petition was withdrawn simplictor. At the relevant time when Writ Petition was filed, the respondent No. 1 i.e. petitioner understood correctly that the aggrieved person by refusal of fair price shop has remedy as provided under the provisions of said Order of 1975, and in case the ig State Government has taken final decision, filing of Writ petition is appropriate remedy. An order passed by the Minister, Food Civil Supplies Department, allowing revision of the petitioner granting fair price shop No. 73, in favour of the petitioner society has attended finality. The respondent No.1 herein should have sought liberty from the High Court for filing any proceedings subsequent to withdrawing the Writ Petition.
12. The another important aspect is that whether the respondent No. 1 had any legal right available in in his/her favour, when the revision of the petitioner was heard by the Minister, Food Civil Supplies Department and same came to be allowed by granting fair price shop No. 73 by order dated 18th August, ::: Downloaded on - 09/06/2013 16:35:21 ::: 32 2004. At the relevant time the respondent No. 1 had no any licence in her name. Even prior to that, licence was not in the name of respondent No.1 First time on 2nd August, 2005, the Distribution Officer, without any authority under law, without any powers, and without taking permission or approval of the higher authorities, issued a letter in favour of respondent No. 1, directing to run the fair price shop No.73, of which the licence ig was in the name of petitioner society. It is also pertinent to note that on 18th August, 2005 the Additional Collector, Aurangabad issued a letter to the Distribution Officer, Aurangabad that he had no power to issue letter dated 2nd August, 2005 in favour of the respondent No. 1 i.e. original plaintiff. Thus, understood the Distribution Officer is not empowered or have any authority in law to issue such letter dated 2nd August, 2005 in favour of the respondent No. 1 for running the fair price shop No. 73. As stated earlier, only the State Government or Collector, is competent to issue licence to run the fair price shop, no any other subordinate officer is empowered to issue the licence or grant the permission to run the fair price shop, unless specifically empowered by State Government. The ::: Downloaded on - 09/06/2013 16:35:21 ::: 33 revision filed by the petitioner for grant of licence of shop Nos. 73,77 & 78 was heard and decided on 18th August, 2004. In the said revision the officer of State Government were party/ respondent. The respondent No. 1 i.e. Ori. Plaintiff was not at all in picture. Even in the second revision which was filed by the petitioner society which was heard and same was reserved for orders on 28th July, 2005, the respondent No. 1 herein i.e. Ori. Plaintiff was not in picture at all, and the State Government Officers who have refused to grant permission in favour of the petitioner to allot kerosene quota were party to the said revision. Therefore, when both the revisions were filed and heard by the State Government, the Minister of Food and Civil Supplies Department, there was no question of giving any hearing to the respondent No. 1 i.e. Ori. Plaintiff. The Counsel for the petitioner Society strenuously urged that there is no legal right in favour of the respondent No. 1 to run the fair price shop. The permission given by the competent authority dated 2nd August, 2005 is not valid. The Civil Court has no jurisdiction to entertain the suit filed by the respondent No. 1, her suit required to be rejected.
::: Downloaded on - 09/06/2013 16:35:21 ::: 34Upon perusal of the prayer in the suit filed by the respondent No. 1, it is clear that the respondent No. 1 has not challenged the order dated 18th August, 2004 passed by the Minister, Food and Civil Supplies Department which has attained finality, by which fair price shop No. 73 was allotted to the petitioner society. The Writ petition filed by the respondent No. 1, challenging the said order came to be withdrawn.
13. Upon careful perusal of the prayer in the suit, the Ori. Plaintiff has prayed that the defendants be restrained from discontinuing the business carried by the plaintiff of fair price shop No. 73 without following due procedure under law by issuing the perpetual injunction and declare the orders dated 6th September, 2005, 8th September, 2005 and 22nd August, 2005 passed by the respondent Nos. 1 to 4 back and behind without hearing the plaintiff as null and void. In fact, as stated earlier, the order passed by the Minister, Food and Civil Supplies Department, in revision granting the licence to run the fair price shop No. 73 in favour of the petitioner ::: Downloaded on - 09/06/2013 16:35:21 ::: 35 has attained finality and said order is not the subject matter of the suit. As stated here-in-above, the licence is granted in favour of the petitioner society to run the shop No. 73. Not only the licence for food grains, but even Distribution Officer has granted kerosene quota in favour of the petitioner society. It is not in dispute that earlier the petitioner society was running these fair price shop.
Therefore, the licence to run the shop No. 73 been granted in favour of the petitioner society under clause 3 of the said Order of 1975. In the said Order the remedy is provided to the aggrieved person. The licence is also issued under the said order.
Therefore, the said order of 1975 itself is self contained Code which provides provision to grant licence. It further provides remedy to the aggrieved person. The said Order of 1975 is issued taking recourse to Section 3 of the Essential Commodities Act, 1955. Before said order came to be issued, approval of the Central Government is also taken. The issuance of licence to run the fair price shop is completely controlled and regulated by the provisions enumerated in the said Order of 1975 if any claim / right is accrued by virtue of licence granted in ::: Downloaded on - 09/06/2013 16:35:21 ::: 36 favour of the party or refusal of licence remedy is provided for redressal in the said Order of 1975 itself. In the present case, there was no licence issued in favour of respondent No. 1. First time, a letter dated 02nd August, 2005 issued by the Distribution Officer, and the same was without any authority under the said Order of 1975. The petitioners were aggrieved by rejection of their claim by the Collectorig and Commissioner, and therefore, revisions came to be filed before the Minister, Food & Civil Supplies Department, and the Minister, Food & Civil Supplies Department allowed the revision filed by the petitioners, and thereby licence came to be issued in favour of the petitioner society to run the fair price shop No. 73, 77 & 78. If at all the respondent No. 1 was aggrieved, she had remedy under the said Order of 1875 or file a writ petition. The respondent No. 1 rightly understood and filed Writ Petition, challenging the order dated 18th August, 2004 and thereafter, withdrawn the said Writ Petition unconditionally.
14. The provisions of Section 9 of the Civil Procedure Code, not only contemplates the express bar, ::: Downloaded on - 09/06/2013 16:35:21 ::: 37 but even implied bar to entertain the suit. At this juncture it would be appropriate to refer to provision under Section 6 of the Essential Commodities Act, 1955, the said Section reads thus :-
" Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act"
Thus, Section 6 of the Essential Commodities Act, 1955 has given overriding effect to the order made under Section 3 of the Essential Commodities Act, 1955, and therefore, the said order of 1975 is having overriding effect. Therefore, procedure provided under the said order has to be followed by the aggrieved person. The Apex Court in the case of " Harishankar Bagla and another V/s. The State of M.P.",cited supra, has considered the provisions of Section 3 and Section 6 of the Essential Supplies (Temporary Powers) Act. In para No. 9 it is stated thus :
" The Legislature cannot delegate its function of laying down legislative policy in respect of a measure and in formulation as rule of conduct."::: Downloaded on - 09/06/2013 16:35:21 ::: 38
In para No. 12 the Apex Court has considered the provisions of the said Act and held thus :-
" Section 6 of the Act cited above declares that an order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. In other words it declares that if there is any repugnancy in an order made under Section 3 with the provisions of any other enactment, then notwithstanding ig that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the order"
In the said Judgment the Hon'ble Supreme Court held that provisions of Section 3,4 & 6 of the Essential Supplies (Temporary Powers) Act, 1946 are constitutional and the impugned order is also constitutional. The Supreme Court has considered the provisions of old Act. Even in the new Act i.e. Essential Commodities Act, 1955, the similar provisions are made in Section No. 3 and 6 of the said Act. Therefore, redressal of any grievance by refusal of licence or granting of licence in favour of other party or for any other reason, the remedy is under the said order of 1975. In case if the person is aggrieved ::: Downloaded on - 09/06/2013 16:35:21 ::: 39 by final decision under said order, only way is to file Writ Petition, as understood by the respondent No. 1, when she filed Writ Petition, challenging the order dated 18th August, 2004, allowing the revision of the petitioner granting licence to run the fair price shop Nos. 73, 77 & 78. The said Writ Petition was withdrawn by the respondent No. 1.
15. In my opinion, viewed from any angle and by necessary implications impliedly the jurisdiction of the Civil Court is barred. Section 9 of the Civil Procedure Code contemplates not only express bar but even implied bar to exercise the jurisdiction.
Therefore, there is no substance in the contention of the learned Counsel appearing for the respondent No. 1 that there is no provision in the said order of 1975 or in the Essential Commodities Act, 1955 which bars the jurisdiction of the Civil Court. The person claiming legal right must first establish that he has legal right in his /her favour. The respondent NO. 1 had no licence in her favour prior to granting licence in favour of petitioner society.
16. In the light of aforesaid discussion, in the ::: Downloaded on - 09/06/2013 16:35:21 ::: 40 facts and circumstances of the case, this Civil Revision Application succeeds. The impugned Judgment and order dated 22nd December, 2005 below Exh. 30 in Regular Civil Suit No. 653 of 2005 is quashed and set aside. However, it is clarified that, respondent No. 1 is at liberty to take appropriate remedy as available to her in accordance with law. Needless to mention that if the respondent No. 1 files any proceedings asig available under law, the Concerned forum/Court will take into consideration the time consumed in prosecuting the legal remedies and take liberal view in interpreting the provisions of Limitation Act. The Civil Revision Application is allowed to the above extent. Rule made absolute in above terms. The Civil Revision Application is allowed and disposed of.
[S.S. SHINDE, J] SDM*159.02 CRA ::: Downloaded on - 09/06/2013 16:35:21 :::